Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 is an English contract law and English tort law case concerning defective premises and the limits of contract damages.

It was disapproved by the House of Lords in Murphy v Brentwood DC and is now bad law[1] except in Canada and New Zealand.

[2] Mrs Dutton sought to recover damages from a builder, Bognor Regis Building Co Ltd, and the local council, Bognor Regis Urban District Council, which had certified her house was sound after it emerged that the foundations of her house were defective because it had been built on a rubbish tip.

The Court of Appeal held that Mrs Dutton could recover money from the council as an extension of the principle in Donoghue v Stevenson.

It was fair and reasonable that the council should be liable to a later purchaser of a house that its surveyor had negligently certified to be sound.

The Position of the Builder Mr. Tapp submitted that the inspector owed no duty to a purchaser of the house.

But they were met invariably with the answer given by Alderson B. in Winterbottom v. Wright (1842) 10 M. & W. 109, 115: "If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop.

The only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, there is no reason why we should not go fifty.

Cavalier v. Pope (on landlords) and Bottomley v. Bannister (on builders) were considered by the House in Donoghue v. Stevenson [1932] A.C. 562, but they were not overruled.

The injured person can reply: "I do not care whether you were the owner or not, I am suing you in your capacity as builder and that is enough to make you liable."

46, and our decision was upheld by the House of Lords: [1958] A.C. 240 : see also Miller v. South of Scotland Electricity Board, 1958 S.C. 20, 37-38.

I hold, therefore, that a builder is liable for negligence in constructing a house - whereby a visitor is injured - and it is no excuse for him to say that he was the owner of it.

He said that an inspector is in the same position as any professional man who, by virtue of his training and experience, is qualified to give advice to others on how they should act.

He said that such a professional man owed no duty to one who did not employ him but only took the benefit of his work: and that an inspector was in a like position.

To support this proposition, Mr. Tapp brought out a long-forgotten case in the House of Lords, Robertson v. Fleming (1861) 4 Macq.

Lord Wensleydale said, at p. 199: "He only, who by himself, or another as his agent, employs the attorney to do the particular act in which the alleged neglect has taken place, can sue him for that neglect, ..."That observation was made in 1861 when the legal profession laboured under the fallacy which I have already mentioned - the fallacy by which it was thought that, when one contracting party was negligent, no one could sue him for that negligence except the other contracting party.

Nowadays since Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 it is clear that a professional man who gives guidance to others owes a duty of care, not only to the client who employs him, but also to another who he knows is relying on his skill to save him from harm.

164, 179, I put the case of an analyst who negligently certifies to a manufacturer of food that a particular ingredient is harmless, whereas it is, in fact, poisonous: or the case of an inspector of lifts who negligently reports that a particular lift is safe, whereas it is in fact dangerous.

The Supreme Court of Illinois, by a majority, held that the insurance company were liable for the negligence of the inspector.

Applying the test laid down by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580-581, I should have thought that the inspector ought to have had subsequent purchasers in mind when he was inspecting the foundations.

If Mr. Tapp's submission were right, it would mean that if the inspector negligently passes the house as properly built and it collapses and injures a person, the council are liable: but if the owner discovers the defect in time to repair it - and he does repair it - the council are not liable.

If he makes it negligently, with a latent defect (so that it breaks to pieces and injures someone), he is undoubtedly liable.

The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson: but it is a question whether we should apply them here.

In previous times, when faced with a new problem, the judges have not openly asked themselves the question: what is the best policy for the law to adopt?

In Rondel v. Worsley [1969] 1 A.C. 191, we thought that if advocates were liable to be sued for negligence they would be hampered in carrying out their duties.

It sets a limit to damages for economic loss, or for shock, or theft by escaping convicts.

All these considerations lead me to the conclusion that the policy of the law should be, and is, that the council should be liable for the negligence of their surveyor in passing work as good when in truth it is bad.

In parting from the case I would like to pay my tribute to the help we have received from counsel on both sides and the very good research they have done in the course of the case.Denning essentially argues (not unlike noblesse oblige) that if an inspector has a statutory right to inspect the property under construction, he thereby acquires a duty of care to inspect carefully.

But jurists Mickey Dias and Hohfeld have shown that rights and duties are jural correlatives.

The later Murphy v Brentwood DC case revealed Denning's reasoning in Dutton to be flawed.